Garret Murai | California Construction Law Blog | March 4, 2019
The enforcement statutes applicable to the California Contractors’ State License Board aren’t exactly models in clarity. A few examples:
- Business and Professions Code Section 7107: Abandonment without legal excuse of any construction project or operation engaged in or undertaken by the license as a contractor constitutes a cause for disciplinary action.
- Business and Professions Code Section 7109: A willful departure in any material respect from accepted trade standards for good and workmanlike construction constitutes a cause for disciplinary action, unless the departure was in accordance with plans and specifications prepared by or under the direct supervision of an architect.
- Business and Professions Code Section 7110: Willful or deliberate disregard and violation of the building laws of the state, or any political subdivision thereof, . . . or of the safety or labor laws or compensation insurance laws or Unemployment Insurance Code of the State, or of the Subletting and Subcontracting Fair Practice Act, or violation by any licensee of any provision of the Health and Safety Code or Water Code, relating to the digging, boring, or drilling of water wells, constitutes a cause for disciplinary action.
We’ve had lively, late-evening debates in my office over what constitutes “abandonment without legal excuse” under Business and Professions Code Section 7107, what a “willful departure” and “in any material respect” under Business and Professions Code Section 7109 are, and what “willful or deliberate disregard” under Business and Professions Code Section 7110 really means.
The exciting lives of construction attorneys. At least, on occasion, it’s followed by a beer.
While it’s the job of a lawyer to argue over what a statute means and how it should be applied, it’s the judiciary’s job to play referee and actually make those calls. And the judiciary has made a call, at least with respect to one of these code sections.
In ACCO Engineered Systems, Inc. v. Contractors State License Board, 2nd District Court of Appeals, Case No. B282944 (Nov 15, 2018), the Court of Appeal wrestled with the meaning and intent of the term “willful” under Business and Professions Code Section 7110 and whether a violation required “specific” or “general” intent.
ACCO Engineered Systems, Inc. v. Contractors State License Board
In 2014, ACCO Engineered Systems, Inc. received notification of a complaint filed with the California Contractors State License Board alleging that ACCO had replaced a boiler at a commercial building in Los Angeles, California without obtaining the required permits. Upon receiving notification of the complaint, ACCO conducted its own investigation and determined that permits should have been obtained for the boiler under Los Angeles’ municipal building code, belatedly obtained the necessary permits in July 2014, and informed the CSLB that the failure to obtain the necessary permits was due to the inadvertence of a lower-level employee.
The CSLB later issued a citation imposing a $500 civil penalty against ACCO for violating Business and Professions Code Section 7110, which provides, in pertinent part, that the “[w]illful or deliberate disregard and violation of the building laws . . . constitutes a cause for disciplinary action.” ACCO appealed the decision and an administrative hearing was held in September 2015.
Following the administrative hearing, the administrative law judge issued his decision finding that ACCO’s failure to obtain a permit before replacing the boiler was not “deliberate” within the meaning of Business and Professions Code Section 7110, but that ACCO’s conduct was “willful” under the statute, notwithstanding ACCO’s argument that its failure to obtain necessary permits was an inadvertent mistake. Noting that ACCO took efforts to immediately remedy the situation, however, the administrative law judge reduced the penalty from $500 to $200.
Legal fees apparently being no impediment, ACCO filed a petition for writ of administrative mandamus, appealing the decision to the Superior Court. ACCO’s petition, however, didn’t fall on kind ears. The Superior Court denied the petition finding that the term “willful” as used in Business and Professions Code Section 7110 only requires a showing of “general,” not “specific,” intent and that when ACCO’s project manager made the decision to proceed without a permit without first consulting with ACCO’s in-house permitting coordinator, as company policy required, he acted with general intent.
ACCO appealed.
The Appeal
The 2nd District Court of Appeal, while noting that the term “willful” is not defined in Business in Professions Code Section 7110, explained that it must be construed in harmony with similar statutes and the intent of those statutes, which with respect to the enforcement statutes applicable to the CSLB is to “protect the public against dishonesty and incompetency in the administration of the contracting business.”
Under a similar statute, Business and Professions Code Section 7109, which provides that a “willful” departure in any material respect from accepted trade standards for good and workmanlike construction constitutes a cause for disciplinary action, earlier cases have “require[d] only a general intent to perform an act, not a specific intent to violate a law,” explained the Court of Appeal.
Further, rejecting ACCO’s argument that such an application turns the statute into a strict liability statute, the Court of Appeal stated that it does not:
We can imagine the absence of willful or deliberate disregard of building laws occurring in the following scenario: A contractor attempts to obtain a building permit but is unable to obtain one because the local permitting authority incorrectly believes no permit is required. Even if it is later established that the permit should have been issued, the contractor’s failure to obtain the required permit cannot be considered a “willful’ violation of the applicable laws, and therefore discipline under section 7110 would not be warranted. We can also imagine the absence of willful or deliberate disregard of building laws where a city’s permitting requirements are ambiguous or subject to interpretation.
Finally, the Court of Appeal rejected ACCO’s argument that by interpreting the term “willful” under Business and Professions Code Section 7110 to encompass even actions involving general intent it precludes a contractor from being able to show that it acted in good faith. The Court held that unlike under criminal statutes “moral blameworthiness is not a necessary element of willful misconduct” under Section 7110, since the purpose of the law is not to punish but rather “toprotect the public against dishonesty and incompetency in the administration of the contracting business.”
Conclusion
So there you have it. Except in very limited circumstances, a contractor’s actions will be considered “willful” under the enforcement statutes of the CSLB irrespective of whether the contractor intended the result or not. I think someone owes me a beer.